same sex


The possibility of a Gay Judge being appointed to the Delhi High Court is definitely a step forward but what does this mean in the larger context of legalization of civil union of same-sex marriages?

Saurabh Kirpal is still slated to be the first openly gay judge of the Delhi High Court. In a more perfect world, only his qualifications to be a judge would matter and be of any consequence to the nomination board making the decision and the larger body of jurisprudence Kirpal would be serving upon his nomination. His identity as a cis-gendered gay man should be incidental, something to be neither extraneously celebrated nor held against him. Yet it’s hard to deny the suspicion that his nomination, pending 2017, fell victim to his sexuality. It was deferred every year. The government denied the red flags had anything to do with his sexual orientation, and argued that the nomination was denied purely on grounds of security concerns which rose out of the Swiss nationality of Kirpa’s partner Nicolas Germain Bachmann. The concern, which is deeply ironic, also points out two major fallacies in the stance taken by the government.

The concern of a foreign national spouse has never been a cause of concern in the case of Dr. S. Jaishankar whose wife Kyoto Jaishankar is of Japanese nationality. Furthermore the acknowledgement of a national threat being posed by Kirpal’s partner is an inadvertent admission of the existence of a same-sex couples in the higher political echelons of the Indian bureaucracy – something that the government has otherwise been blind to in general as far as the larger public is concerned. It points out the hypocrisy of the stance which acknowledgement same-sex partnership only on grounds of security concerns but denied the possibility of the same when citizens use its existence as a legitimate ground to demand recognition of civil unions between same-sex partners.

In the month of October the Union has told the Court its stance on same-sex marriages by saying that it went against the foundational objective of marital unions – reproduction, which could only be possible if there was a marriage between a biological man and a woman. In the end of November, the same-sex marriage hearings came up before the Delhi High Court yet again and was dimsissed by the court. The petition seeking to legalise the civil union of same-sex partners had sought the same under the Hindu Marriage act, Special Marriage Act and the Foreign Marriage Act. The court argued saying that the same could not be granted under the Hindu marriage Act since same-sex partnership went against the precincts of Hinduism and a secualr state intervention in the issue of religion in a Hindu-majority population state would only be detrimental.

Some observers say India is lucky that it already has a Special Marriages Act that can be used to bypass issues of religion and could be a way to allow same-sex civil marriage. But the government has already made clear that just because homosexual sex was decriminalised it did not mean homosexuality and its anciliiary institutions were being legitimised, thereby keeping recognition of same-sex marraige off the table as far as the Centre was concerned. This brings to light a larger debate concerning the existence of freedoms for citizens without the right to act upon it. Currently owing to the historic decriminalisation of Section 377, homosexuality can no longer be punished by law. However the carrying out of any form of love, if desirous to be resultant in marriage, will not be recognised by the State on grounds of it harming the social fabric of the community at large. Furthermore, the non-existence of acknowledgement of civil unions denies same-sex partners rights to tools of public assistance such as insurance and property rights as well.

But as the case of Kirpal proves, these lines are trickier to navigate than we ever imagine. It was inevitable that the ball would not stop rolling at decriminalisation just because the government drew a line in the sand. Gay people cannot come out of the shadows yet leave their relationships in the closet. One could debate about whether marriage should be the top priority for the movement and whether the whole idea of trying benefits to marriage is outdated but it’s only natural that LGBTQ popeople would want the same rights as everyone else. In fact various trans-rights have criticised the decision to legalise marriage in an atmosphere where the discriminatory Trans Bill still holds sway over the populace as emblematic of the mainstream ueer movements repeated erasure of gender minorities and trans bodies in favour of cis-gendered, upper-class queer folks. Their primary critique being directed at the lawyer duo Arundhati Katju and her partner who have in many ways become the face of the liberation movement at large. While their advocacy intentions are never questioned their prominence as the face of the movement is repeatedly brought to question as they embody the centralisation of cis-gender upper class domination of queer discourses.

Currently the debate around marriage in India is wrapped around symbols and rituals. Does Dabur get to give a lesbian twist to Karva Chauth in an advertisement for skin bleaching products which have been at the receiving end of criticism for more than a year now following moves by brands like Fair and Lovely in changing well established marketing strategies? Can fashion designer Sabyasachi pair a mangalsutra, an ornament that is situated in a historicity of patriarchy and misogyny, with low necklines and suggestive intimacy following being heavily criticised for selling Indian artisanship to western corporate setups? What truly are the politics of a brand like Tanishq showing a Muslim family organising a traditional Hindu baby shower for their Hindu daughter-in-law in a country where the marketing head of the same company, which stands as one of the most reputed in its field, gets death threats on grounds of promoting love-jihaad?

The debate around such questions and scenarios can only be contemplated if one realises that the construction of marriage as a social document is not reductive to mere symbols – objective and metaphorical. Marriage is not only about bindis, mangalsutras and Karva Chauth but more about social acceptance and respectability and accessibility to public resources. Although gay weddings are the rage of the hour as clearly proven by the Telengana marriage reception, basic rights are still denied to same-sex partners. An event of heartbreaking magnitude can be traced back to the pandemic when an NRI married to an American same-sex partner was denied entry into India, although the same rule was relaxed for heterosexual couples of the same order.

As Sandip Ray puts succinctly in a Times Of India editorial with regard to the same,

In the end progress is about these boring things. The first openly gay judge on the Delhi High Court makes for a good news story and will be a point of inspiration for many. It is something to be welcomed but what LGBTQ Indians ultimately need are those joint bank accounts, the health insurance plans, joint custody of children and hospital visitation rights. Just like every other couple.”


Read Also
Section 377 – Has anything changed?
A Post-377 World: Is this really Freedom?


Anwesh Banerjee

[email protected]

The trope of the gay bestfriend is a painful reminder of the constant alienation of the queer community, especially on days like Valentine’s Day when queer baiting temporarily peaks. Read on for a personal piece on the same.

Valentine’s Day sucks. Not because I am single and perpetually heartbroken. But because I am gay. But then as per normative standards of viewing gayness I am not visibly queer enough for most folks. I don’t colour my hair or sport multiple piercings and there are no rainbow motifs around my social media handles (although not going to deny the presence of veiled hints for those wishing to look really hard). My wrist isn’t limp (you have childhood trauma to thank for that) and my clothes are more indie than unicorn dazzle. And hence the presence of women around me becomes a point of deep intrigue for those viewing me from afar.

Valentine’s Day sucks because being the gay best friend is tiring. We live in a world where the comfort of intimacy is only supposed to be sought in engaging in intercourse with a stranger you met on an app you downloaded two hours ago because you were drunk on your fifth shot at a friend’s housewarming party. Any sort of intimacy, specially of a physical nature, must be relegated to the realm of sexual because people in today’s world have simply forgotten the peace that is to be had in the romance of friendship.

Valentine’s Day sucks because a girl hanging out with a girl in a park is a sight for people to turn around and stare and engage in conjecture. See how they are leaning in pretending to talk? Whispers that follow you to the corner of cafes where over cups of hazelnut latte one can hear admonishing comments on grazing fingers and hands that seek to touch and put the arms as an expression of joy and happiness. There is no respite to be found in the conclusion that friendships are a romance of their own kind. To love someone so deeply and completely so as to forsake the expectations of any physical or carnal fulfilment of that love is to truly be in the presence of a love that is supreme and essentially fulfilling.

Valentine’s Day sucks because cafes across the city offer discounts on love that can be capitalised. It isn’t enough anymore for Yash Raj to earn millions when Rahul promises to love Nisha for the rest of his life while a thousand people cry in the darkness of the cinema theatre. Love must be sold tangible – through discounts and offers inscribed on menu cards and shopping banners. But these aren’t all that comes our way. Extra offers are deliciously reserved if you are queer and can bring with yourself a same-sex lover because your love is just a means to fuel the system that encashes the most fundamental and necessary of all human emotions.

Valentine’s Day sucks because it is painfully lonely to be the one man in your nearby vicinity who is proud enough to be out there – only to become a transit point for the rite of passage sexual awakening of all the queer closeted men around you. Men who use you precisely like a transit point, to never turn back and look upon once the transition is undisturbed and over with.

Valentine’s Day sucks because to be the gay best friend is to beg people to realise that you are more than just a Gucci handbag for people to sling onto their arms and strut around – claiming your space for their wish-fulfiment fantasies. You are more than an accessory to adorn the sorry lives of people, you are more than just the reductive heternormative gaze that breaks and splits you down to your tiniest atoms and you are more than your community which makes you guilty of always just not being enough.

Valentine’s Day sucks because people around you fail to realise that beneath all your pointed laughter and printed linens, very few people understand – looking at the million dazzling Valentine Day adverts – that the difference between alone and lonely shall perhaps always remain lost in translation.

 Anwesh Banerjee

[email protected]